The California Department of Insurance (CDI) regulates the bail bonds services as per the Bail Bond Regulatory Act in 1937. A bail bond is a surety bond, which acts as a guarantee for the appearance of the defendant, whenever required by the court. Bail bonds are issued under the supervision of licensed bail agents who are required to follow the California Code of regulations, California Penal Code and California Insurance Code. Presently, there are about 3,200 licensed bail agents in California. This blog post elucidates the legislations, lope holes and bail bond services in California.
History of bail in California
The United States did not commence officially practising bail bonds before its independence in 1776. The foremost official bail law was promulgated in the United States called as Judiciary Act 1789. However, the concept of bail exists without any legal stance pertaining to it. As per the Judiciary Act 1789, bail is granted to all the incarcerated people excluding those who are punishable by death. It was not properly executed as it took one century, the very first bail bond agent had established in San Francisco, California. There were no proper guidelines by the Federal government about the implementation until the enactment of the Bail Reform Act of 1966. (Bonta, R.2018). There is no explicit right to bail in the United States Constitution but the right of habeas corpus is amalgamated in Article 1 and restriction against “excessive bail” in the eighteenth amendment which reflects the 1776 Virginia Declaration of Rights. (Schnacke, T.R,2010). All these instances reflect that the concept of bail bonds had evolved with the passage of time as per need of the people.
California Bail Bonds Laws
All California Bail Agents are required to be Licensed and control by the California Department of Insurance (DOI). It is essential to conduct their services as per California Insurance Codes. Moreover, the California Penal Code and California Code of Regulations incorporate the modus operandi about bail bonds in California.
California Code of Regulations
Rule 2054(4) of the California Code of Regulations deals with the payment of Commissions as no person can receive any commission unless he holds a bail license. Rule 2071 of the California Code of Regulations deals with Recommending or Suggesting Attorney as no bail licensee can directly or indirectly recommend and suggest the name of an attorney to any arrestee or represent any arrestee. Rule 2074 deals with the Unlawful Solicitations as no bail licensee shall solicit any person for bail in any jail or prison, court or public institution connected with the administration of justice. Rule 2079, deals with the soliciting of bail; person, no bail licensee shall give directly or indirectly any gift to any employee of the government agency or public official, who has responsibilities and duties regarding the administration of justice or wherein incarcerated with z a crime may occur. (Johston-Dodds, 2002). When all these regulations are applied strictly so it will enhance the rule of law in the criminal justice system.
Penal Code:
Section 160(a) deals with illegal for jail inmates to solicit for bail companies as no bail licensee in Orange Country or anywhere in California may solicit, employee, engage, pay or promise any consideration to any person who is incarcerated in any prison, jail or any place of detention. The infringement of this section is a misdemeanor. Section 1270(2) deals with defendants entitled to a bail review hearing as to when a person is incarcerated with a criminal charge, he is entitled to an automatic review of the order by a Judge or magistrate within 5 days. Section 1275(a) deals with Judge or Magistrates setting bail amount as the Judge or Magistrates setting bail amount by considering the seriousness of the offence, the safety of the public at large and the past criminal record. Section 1275(1) deals with the examination of the source of funds for bail as bail shall not be granted unless a Judge or magistrate figure out that no portion of the bail bond premium received by the bail bond company feloniously. Section 1276 (5a) deals with the disclosure of Lien against your home as if utilization of properties secures a bond so it is required that the property owners sign and read the whole agreement. Section 1300(a) deals with Bail Bond Agent’s right to surrender Defendant as at any time before forfeiture, the bail agent may surrender the defendant back into custody. Section 1303 deals with the No compliant filed, automatic 15 days Bail Bonds Exoneration as if a defendant is out on bail and no complaint has been filed before the first appearance, the bail bond will automatically have exonerated after 15 days. (Gustafson, R.A,1956)
California Insurance Code
Section 1726(a) deals with internet advertising as it is a mandatory requirement for a licensed insurance agent or broker shall provide these details on the internet which incorporates the name, state and license no. Section 1800(a) deals with no soliciting/ advertising without a license as it is illegal to solicit for bail without bail license (Murphy,1971). Subsequently, all these laws and regulations are the gist to maintain fair train in the California.
Loop holes in the implementation of bail bonds in California
On one side there are a lot of legislations about bail bonds in California. On other hand, there are certain lope holes in the implementation such as California’s system of pretrial incarceration keeps incarcerated people who are never found guilty of any crime. People accused of crimes are unable to afford bail due to financial obstacles and give up their inalienable constitutional right and remain in prisons regardless of innocence and any guilt (Page, 2011). California’s system of pretrial incorporates mostly poor, working-class and racial and ethnic minorities. The incarceration rate of black people is many times higher than for white people such as about nine times higher in San Francisco. A large number of incarcerated people who are not guilty either they have to pay bail, often plunging themselves or their families went into crushing debts and the other option for them is to stay in incarceration and contest their cases. California’s system of pretrial incarceration and money bail based on the financial status of the accused. Those who are rich can buy their freedom by paying bail amount. Most defendants depend on bail bondsmen to get out of incarceration. Their charge is 10 percent of the actual bail amount, which is not refundable in any case. People who are with low financial status can often use a payment plan.
The Money Bail System in California
It is worth mentioning that the United States is one of the countries in the world which dominates the pretrial system over commercial bail bonds. The commercial bail bond industry in the United States spend $14 billion each year in addition to $2 billion yearly. Since 2010, the commercial bail bond in California has contributed about $300,000 to candidates running for office.(Karakatsanis, 2018) The commercial bail bond industry plays a crucial role in the criminal justice system in California. However, bail bond agents possess the authority to revoke a client’s bond and sent it back to incarceration at any time. As per the California Department of Insurance, complaints regarding the bail bonds have raised since 2010 (Guillings, 2012).
The California Bail Bond System
The most common method of getting bail bonds is through the licensed bail bondsman. The 10% of the bail amount is required to pay the bail bondsman for example if a defendant has set an amount of $50,000 so he can secure a bond of $5000. All the incarcerated people can release in three ways; obtaining bail, their recognition and released on a citation. The bail bond acts as a surety that whenever the court requires the defendant he will be present before the court. When people are unable to obtain cash bail, bail bonds are more often used. Release times vary from jail to jail to get released from custody. Some bail companies offer discounts less than 10% such as when the clients are represented by the union members, government employees, represented by attorneys and members of the United States, Military. The terms and condition incorporated in contracts for the bail bonds is usually one year. In case, the extension requires a renewal premium.
The bail bond process in California
Once a person is incarcerated so the very first stop is incarceration. After arrest, the defendant goes through the process called booking and processing. In this step, photographs and fingerprints are taken which requires 2 to 8 hours then a bail schedule is used by the panel of judges. One of the options to get a release from custody is to call a licensed bail bondsman. He will ask all the required questions which are crucial for commencing the process. The next step is to fill out the bail application and contract. It incorporates all the terms and conditions. The defendant is required to sign the contract after carefully go through the contract. The bail bondsman has the liability to explain the contract and address all the queries. Once the defendant pays the required amount as per the contract then the process started. The total cost of the bail bond will always be 10% of the total bail amount. The bail bond is granted on the condition that whenever the defendant is required by the court he has to be present there. Once the defendant has fulfilled all the obligations of the court then the judge will declare the bail exonerated.
Costs in the bail bonds contracts
Bail bond agents and sureties charge a fee that is about 10% of the total money bail amount. They do not refund the fees for a reason. Sometimes, the individual has to pay thousands of dollars to obtain a pretrial release in fact they are arrested on false charges. Some bail bonds agents provide a discount when they hire a private attorney. In these cases, the bail bonds recipients pay an 8% premium rather than a 10% premium. This reflects that the individual who has strong financial background may pay less than poor clients. According to the rule, 2083 of the California Code of Regulations requires bail bonds agents to provide a list of additional charges other than the bail premium.(Hoskins, 1968) It shows that there should be a proper supply of vouchers, receipts or true copies to the accused to avoid any misunderstanding arise from the agreements at later stage. Moreover, apart from the fees, bail bond agents create profits by incorporating structures fees in their contracts.
Positive impacts of bail and bail bonds on economy in California
The system of bail and bail bonds seems like a closed business among the agent, the court system and the incarcerated people. It has a huge impact on the economy. It enhanced the employment opportunities in the criminal justice system. It boosts the economy of the community as the premium is non- refundable.
Recommendations for bail bonds in California
- There is a need to provide alternatives for the needy people, who are not capable to bear the cost of the bail bonds.
- There should be a strict implementation of all laws about bail and bail bonds regardless of race, ethnicity and financial stability.
- For the grating of bail and bail bonds, the rule of law should be implemented as there should be no discrimination based of the incarcerated individuals.
- If possible to make bail hearings more available to the incarcerated individuals.
- There is a need of more licensed bail agents or securities who can provide pre-arrest bail.
Conclusion
This blog post covered the legislations, implementations and lope holes in the implementation of bail bonds in California. Bail and bail bonds are regulated by California code of regulations, California Penal code and California Insurance Code.
References
Bonta, R. (2018). The California Money Bail Reform Act: Ensuring Pretrial Justice and Public Safety. UCLA Criminal Justice Law Review .
Guillings, A. (2012). The commercial Bail bonds; Profit or Public safety. http://www.cjcj.org/uploads/cjcj/documents/Profit_or_Public_Safety.pdf.
Hoskins, J. (1968). Tinkering with the California bail system. Calif.L.Rev.
Johston-Dodds, K. a. (2002). Early California laws and policies related to California Indians. California State Library. California Research Bureau .
Karakatsanis, S. T. (2018). Challenging Money Bail in the Courts. Judges J.
Murphy, J. (n.d.). Revision of state bail laws. Ohio St.LJ.
Page, J. (2011). The toughest beat: Politics, punishment, and the prison officers union in California. Oxford University Press.
R.A, G. (1956). Bail in California . Calif.L.Rev.
Schnacke, T. J. (n.d.). The history of bail and pretrial release. . PJI, Pretrial Justice Institute.
Team, B. B. (17 Oct 2020). A Brief History of Bail in the United States. San Diego: https://balboabailbonds.com/blog/a-brief-history-of-bail-in-the-united-states/.
